1. Section 51 advice
  2. Advice in detail

Meeting with RWEnpower

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Enquiry

Meeting with
RWEnpower
Date of meeting
3 February 2011
Enquiry type
Meeting

  1. Can unilateral undertakings also be taken into account as part of the examination process?

  2. In relation to the Book of Reference is there a preferred format for the Book of Reference and what guidance is there for it?

  3. Does all land being acquired need to be listed in the Book of Reference - i.e. irrespective of whether it is being acquired voluntarily or compulsorily? Is it necessary to indicate the area in sq.m for all the land or only where land is being compulsorily acquired ?

  4. What is the definition of plots for the purpose of the Book of Reference?

5.Does the Book of Reference need a separate plan or can it be combined with one of the plans required by the APFP (land, access, works)?

  1. Does temporary land also need to be included in the Book of Reference?

  2. Will the personal details of those listed in the Book of Reference be made public or should they send us a redacted version of the Book of Reference?

8.Does compulsory acquisition of rights also trigger the need for a DCO to be made in the format of a statutory instrument (SI)? Are there any specific additional requirements that applicants need to bear in mind/fulfil if a DCO needs to be made in the format of a SI?

9.How much longer does it take at the end of the process if it is a SI/what else needs to happen after the examination?

  1. Should the land plan show the limit of deviation? And how should it be included and dealt with under the 2008 Planning Act?

  2. Definition of 'area': in schedule E (of draft DCO) and in schedule G - is it different meaning? Is the former in the sense of 'general location' which cannot be expressed in sq.m. whereas the other the extent of coverage of a plot that can be expressed in sq.m.?

Advice given

  1. The 2008 Planning Act amends the 1990 Town and Country Planning Act so that development consent obligations (in effect s.106 obligations) can be entered into in connection with an application for an order granting development consent (s.174 of the Act). The need for development consent obligations should be discussed between the LPA and the applicant at the pre-application stage and heads of terms agreed before an application is submitted. A fully drafted agreement or unilateral undertaking which has been consulted upon and referred to in the consultation report should be included with the application. If s.174 obligations have not been finalised or completed prior to the start of the examination process the Examining Authority could include deadlines requiring this in the examination timetable. An agreement or a unilateral undertaking would need to be completed/ finalised and submitted before the end of the examination process in order to be taken into account by the Examining Authority.

  2. As set out in DCLG Application Form Guidance (http://infrastructure.independent.gov.uk/wp-content/uploads/2009/08/applicationformguidance.pdf) - particularly paragraph 25 - "The book of reference must be in the format, and contain the required information, that is set out in regulation 7 of the Applications Regulations. " (APFP Regulations: http://infrastructure.independent.gov.uk/wp-content/uploads/2009/08/uksi_20092264_en.pdf). The DCLG have also issued guidance related to the procedures for compulsory acquisition under the 2008 Planning Act: http://www.communities.gov.uk/publications/planningandbuilding/guidancecompulsoryacquisition

  3. If land is being acquired by agreement then it would not usually need to be included in the Book of Reference unless there are restrictions on the title which need to be overcome. If included in the Book of Reference then the area of land must be given in square metres. However, the applicant needs to be able to demonstrate that the conditions which need to be met to the satisfaction of the decision-maker for compulsory acquisition (including s. 122(2) and (3) of the Act) are met for all the land and interests for which compulsory acquisition powers are sought. See also CLG guidance on compulsory acquisition p. 8ff. Applicants should also consider whether any of the interests considered for compulsory acquisition raise the possibility of a Special Parliamentary Procedure or would require additional certification by the SoS under s131/132 for example, a DCO which authorises the compulsory acquisition of any land or rights over land forming part of a common open space or fuel or field garden allotment is subject to special parliamentary procedure unless the Secretary of State issues a certificate under s.131/s.132. The IPC would therefore not make the DCO until the Secretary of State's decision on the certificate is known. Guidance is contained in CLG Guidance on compulsory acquisition Annex 1 which includes the statement : " it is the responsibility of the promoter to ensure a certificate ?.. Is obtained in good time to allow the decision-maker to make the order without any delay to the process."

  4. A plot is an area of land the boundary of which is co-terminus with the legal interests in that land.

  5. Regulation 7 of the APFP Regulations states that the Book of Reference means a book in five Parts together with any relevant plan. Relevant plan is defined as including the land plan. Reg 5 (i) (1)sets out what the land plan must identify. A separate plan could be submitted in addition to the requirement for the land plan but the risk of inconsistency would need to be avoided. Further guidance on plans is set out in Annex 3 of the CLG Guidance on compulsory acquisition.

  6. Yes if the right being acquired temporarily is being acquired compulsorily and not by agreement.

  7. They must shown in the Book of Reference and published as required by regulation 7 of the APFP Regulations 2009.

  8. S.117(4) of the Act together with s120(4) and (5) provides that where a DCO proposes to apply, modify or exclude legislation the DCO must be made in the form of a SI. Consequently any provision included in a DCO that applies, modifies or excludes legislation would bring the DCO within the terms of s120(5) and the DCO would therefore need to be an SI. This includes provisions that are contained in the Infrastructure Planning (Model Provisions) (England and Wales) Order 2009. An example would be model provision 23 in Schedule 1 which applies the Compulsory Purchase (Vesting Declarations) Act 1981. Furthermore, the draft SI needs to be accompanied by a draft Explanatory Memorandum, which explains ?the purpose and effect of provisions in the draft order, including in particular any divergences from the model provisions? as required by regulation 5(2)(c) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (SI 2009 No.2264)). You may find the Statutory Instrument Practice Manual contains some invaluable information concerning the drafting/checking of SIs and Explanatory Memoranda (http://www.opsi.gov.uk/si/si-practice.doc ).

  9. Under s.121 of the Act any DCO which proposes to use the "legislation powers" in s.120(5) of the Act must be sent in draft form to the Secretary of State (SoS) before the DCO is made so that the SoS can check whether the DCO would contravene Community law or Convention rights under the Human Rights Act 1998. Where the decision maker is the IPC S.117(5) of the Act provides that the Statutory Instruments Act 1946 (SI Act 1946) applies to the instrument (DCO). The SI Act 1946 requires that

  • A copy is sent to ?the King?s printer? immediately after making the order
  • An SI number is allocated by that office S.117(6) of the Act provides that as soon as practicable after the instrument (DCO) is made a copy must be deposited in the office of the Clerk of the Parliaments together with the latest version of any plan supplied by the applicant in connection with the application for the DCO and the statement of reasons prepared under section 116(1).

  1. The works plan must show the proposed route and alignment of the development and works and should also show the limits of deviation within which these may be carried out. The limits of deviation shown on the works plan should reflect the provisions in the draft Order (Regulation 5 of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009). Model Provision 6 in Schedule 2 of the Model Provisions Order (Model Provisions for Railways) is a provision dealing with limits of deviation. The Explanatory Memorandum should refer to the limits detailing why they are required.

  2. Model provision 12 (a) refers to "means of access ?. in the location specified in columns (1) and (2) of Schedule E ?" 12 (b) requires the approval of the relevant planning authority. The "Area" of the relevant planning authority could be set out in column (1) with the description of the access and its location in column (2) Definition of area in Schedule G Model Provision 28 refers to "the land specified in columns (1) and (2) of Schedule G?." Column (2) refers to the number of land shown on the land plan. Where temporary possession of land is required, (in the absence of voluntary agreement) Regulation 7 of the Infrastructure Planning (Applications:Prescribed Forms and Procedure) Regulations 2009 applies. The land plan will identify the plot with a number. For consistency "area" could be defined in the same way as in Schedule E.